I previously have written that the argument in Sebelius v. Cloer presaged a likely defeat for the Solicitor General. Justice Sotomayor’s opinion yesterday firmly rejecting the government’s position was exactly what you would have expected based on the argument.

Opinion author in red.

The case involves a most unusual statutory scheme that provides no-fault compensation for individuals who suffer adverse reactions after taking a vaccine. A claimant who suffers a covered injury seeks relief by filing a petition with the Secretary of Health and Human Services (currently the petitioner, Kathleen Sebelius). The petition is adjudicated by a special master and reviewed by the Court of Federal Claims; all appeals go to the Federal Circuit. Awards come from a fund generated by a small tax on vaccines covered by the program. Among the other oddities of the program, the statute provides that the fund will pay attorney’s fees for all petitions (meritorious or not) filed in good faith and with a substantial basis.

The specific problem here arises because the respondent, Dr. Cloer, filed her claim for compensation out of time. Although reasonable minds could differ on that question (she prevailed before a panel of the Federal Circuit), ultimately her petition was held untimely. Still, recognizing the substantial basis for her view that the petition was timely, the Federal Circuit authorized an award of fees.

The government persuaded the Court to review the decision, emphasizing the argument that waivers of sovereign immunity must be construed narrowly. Because it is so rare for Congress to require the payment of attorney’s fees for losing parties, the government argued, the Court should be most reluctant to read the provision so broadly as to apply even to cases that were not filed within the statute of limitations. Specifically, because the provision for attorney’s fees applies only to “filings,” and because filings must be made within the statute of limitation, the government argued that a pleading outside the statute of limitations is not a “filing” and thus cannot justify a fee award.

That contention seemed to fall apart at oral argument when Justice Scalia (among others) emphasized the idea that once a waiver is found (something that is plain here), the statute should be read under normal conventions. And that is what we see in Justice Sotomayor’s opinion. The biggest problem for the government is that “filing” cannot always have the meaning the government attributes to it. Most tellingly, as Justice Sotomayor noted, the statute requires the Secretary of HHS regularly to publish in the Federal Register a list of all “filings” under the Vaccine Act. Those lists have never attempted to exclude untimely petitions; indeed, the petition in this case appeared in one of those lists.

The Court found it easy to accept Dr. Cloer’s argument that a filing is a document that is presented to and accepted by a court (as hers was). Because the statute does make sense (albeit not the sense that the government desires) when “filing” is given a natural meaning throughout the statute, the Court rejected the government’s reading out of hand. There was no dissent; the only departure from unanimity was the refusal of Justices Scalia and Thomas to join a brief section emphasizing that the Court’s decision also furthers the general purposes of the Vaccine Act.

The case is unlikely to be an important one, and is likely to send few ripples through the future jurisprudence of the Court or the Federal Circuit. If it offers guidance to anybody it would be the Office of the Solicitor General. That Office, after all, agreed to seek review of this decision, involving a small amount of money under a relatively minor program, in the absence of any circuit conflict. In return, it got a vigorous rejection of sovereign immunity, providing a clear road map for courts motivated to poke holes in the government’s sovereign immunity, wrapped up in as stern a rebuff as the government is ever likely to see in a case of so little direct importance.

In Plain English

Congress has a special statute for people who have a bad reaction after they take a vaccine. They file a simple paper with the Department of Health and Human Services in Washington and automatically get a payment from the government without having to prove that the vaccine caused the reaction, but only if they ask within two years from when the reaction begins. In this case, the respondent’s reaction to a vaccine was hard to identify (multiple sclerosis), so it wasn’t clear when it began. Eventually, a lower court decided that she filed too late. Still, the court gave her attorney fees because it thought her request was reasonable. The government asked the Supreme Court to reject that holding; it argued it should never have to pay fees if the request is filed too late. The Supreme Court said no, and said the injured patient could get her attorney fees paid by the government.

Rubin v. Islamic Republic of Iran Section 1610(g) of the Foreign Sovereign Immunities Act of 1976 does not provide a freestanding basis for parties holding a judgment under Section 1605A to attach and execute against the property of a foreign state; rather, for Section 1610(g) to apply, the immunity of the property at issue must be rescinded under a separate provision within Section 1610.

Digital Realty Trust, Inc. v. Somers The anti-retaliation provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act does not extend to an individual who has not reported a violation of the securities laws to the Securities and Exchange Commission.

Class v. United States A guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal.

Murphy v. Smith In cases governed by 42 U.S.C. § 1997e(d), district courts must apply as much of a judgment in a federal civil rights suit as necessary, up to 25 percent, to satisfy an award of attorney’s fees.

Conference of February 23, 2018

McLaughlin v. McLaughlin Whether the Arizona Supreme Court erred when it held that a biology-based paternity statute violates the Fourteenth Amendment and the Supreme Court's decisions in Obergefell v. Hodges and Pavan v. Smith.

United States v. Jackson Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.